month from now the longest, most expensive criminal investigation
in Marine Corps history will finally come to an end one way or another
at the general court martial of SSgt Frank Wuterich, the last Marine
accused of unlawful killings at Haditha, Iraq on November 19, 2005.
the public sees the truth at this court-martial, it will be one of the
biggest news stories of the year,” said Neal Puckett, the lead defense
attorney in the upcoming court martial. “The truth of the story is yet
to be revealed.”
five years ago, a hidden insurgent remotely triggered a huge bomb that
blew apart a lightly armored Marine Corps “high back” Humvee. One
Marine and 24 Iraqis died in the gruesome exchange that followed.
Eleven Marines were wounded. The virulent press dubbed the incident
the “Haditha Massacre.”
the decedents were quickly deemed insurgents for their complicity in
staging the attack from a residential neighborhood. The rest of the
victims unfortunately got in the way. The Marines Corps declared
victory the next day in a bland communiqué. Regrettably it was
factually wrong, the first of many factual and procedural mistakes
that would follow. The Marine Corps has been on trial ever since. On
September 13 it will have one more shot at vindication.
During an interview on the CBS television news show “60 Minutes”
Wuterich revealed what happened that day:
…I remember there may have been women in there, may have been
children in there. My responsibility as a squad leader is to make
sure that none of the rest of my guys died ... and at that point, we
were still on the assault, so no, I don't believe [I should have
stopped the attack].
We went through that house much the same, prepping the room with
grenades, going in there, and eliminating the threat and engaging
the targets…There probably wasn't [a threat], now that I look back
on it. But there, in that time, yes, I believed there was a threat.
At his preliminary hearing two years ago Wuterich said he regretted
the loss of civilian life in Haditha, but said he believed he was
operating within military combat rules when he ordered his men to
What happened didn't mean there was criminal intent
has represented the 30-year old infantryman he calls “the last Marine
standing” since 2006. Funded by almost a quarter of a million dollars
from generous donors, he has never given an inch. Convicting Wuterich
would give the Marine Corps prosecutors who relentlessly pursued his
client a scrap of absolution. Puckett doesn’t intend to provide the
Marine Corps vindication that easily, he said.
“They were acting in accordance with their
training. If errors in judgment were made, you have to give the
benefit of the doubt to the Marines. What happened [at Haditha]
doesn’t mean there was criminal intent,” Puckett explained.
the investigation was flawed, the prosecution ignored exculpatory
evidence uncovered by the Naval Criminal Investigative Service, and
his client was the victim of undue command influence, the same
judicial stain that set Wuterich’s commanding officer free last month.
Wuterich is charged with voluntary manslaughter, aggravated assault,
reckless endangerment, dereliction of duty and obstruction of justice
for leading the squad that killed the Iraqis. He was the squad leader
in Kilo Company, 3 Battalion, 1st Marines who lead three of
his men on a house clearing attack after his four vehicle resupply
convoy was ambushed. He is currently assigned to administrative work
at 1st Marine Division headquarters at Camp Pendleton. The young
Marine who put his future on hold to defend his country has already
lost more than most; his wife, his family, and his home. The Marine
Corps still wants his life. If convicted Wuterich could spend most of
it in prison.
powers of the government versus one Marine
Wuterich has already overcome tremendous
odds. The NCIS maintained both a field investigation and an oversight
committee in Washington that kept tabs on the progress of the
investigation. NCIS officials acknowledged during the preliminary
investigation that at least 65 special agents were occupied with the
case at its zenith in the summer of 2006. The government has spent
untold millions of dollars and thousands of man hours without proving
its case. Over time the so-called Haditha massacre that never happened
fell off the public’s radar screen.
Closely monitoring the situation was former
Secretary of Defense Donald Rumsfeld, who formed a study group to
determine what to do after the late Pennsylvania Congressman John
Murtha accused the Marines involved of massacre and cover-up. He used
the occasion to attack the war policies of former President George W.
Rumsfeld’s hastily assembled study group’s
analysis of the political and legal situation was used to help decide
what course of action to take against eight Marines ultimately accused
of massacre and cover up in the deaths of the Iraqis.
The group was briefed by high ranking Marine
Corps lawyers sent by Brigadier General Kevin Sandkuhler, Staff Judge
Advocate to the Commandant of the Marine Corps at the time. Also in
the mix was Peter M. Murphy, former General Counsel to the Marine
Corps--a civilian who counseled Commandants and their lawyers for 20
years. Both men have since retired. The odds makers said the Haditha
Eight didn’t stand a chance.
wouldn’t say precisely how he plans to prevail, although he offered a
few hints. For one thing he’s gathered a Dream Team of experienced
military trial attorneys and military law experts. His team includes
two retired Marine lawyers, an international law expert, and an active
duty major appointed to the proceedings.
them is Colby Vokey, another retired Marine lieutenant colonel that
was so effective representing Wuterich and the other defendants during
the preliminary hearings in 2007 he was fired until the uproar from
prominent military jurists forced the Marine Corps to reinstate him.
the team is retired Major Haytham Faraj, Puckett’s partner and a
dogged interrogator. Faraj served 22 years in the Corps before
retiring as the senior military defense counsel at Camp Pendleton, CA.
board is Mark S. Zaid, an international law expert who usually takes
on government intelligence agencies for a living. All three lawyers
were familiar names and faces when the international press descended
on Camp Pendleton after the hearings began in May, 2007.
latest addition to the team is Major
Merideth Marshall, the senior
defense attorney at Miramar Naval Air Station. She was appointed by
the Marine Corps as military counsel for Wuterich. She is the only
newcomer in the mix and the only female lawyer to participate in the
against them is the prosecution team led by Lieutenant Colonel Sean
Sullivan, a former reservist who decided to remain in the Corps and
give up his civilian practice in Chicago. He has the resources of the
entire prosecutorial apparatus of the Department of Defense at his
disposal. Sullivan and his stable of prosecutors have tangled with
Puckett before. There is no love lost.
Wuterich didn't kill anyone
stake is a lot more than the guilt or innocence of Wuterich. Puckett
plans to put the proceedings on trial as well. Seven times the
government has brought Marines who fought at Haditha before the bar
and seven times they have been set free (the eighth had charges
dropped against him). That by itself says something, he noted.
“The mindset of those
guys was no being policemen. Cops go through scenarios about shoot or
not shoot during a hostage rescue. This was not a hostage rescue. They
had received fire from those houses and that made them hostile and a
hostile house is a target. They could have called an airstrike on
House #1. That has always been an integral part of our case,” Puckett
The forensic evidence gathered at the crime scene months after the
engagement will show that Wuterich did not kill anyone, Puckett added.
“In a murder investigation the deceased usually has one or more bullet
holes in them. The cops like to match the bullets that made them to a
handgun and the gun to the suspect. It is the same thing here. When
you charge a Marine with shooting someone – murder - you want to be
able to say who did it; the weapon with this serial number was issued
to this Marine who was there on a certain day. There are no bullets or
other forensic evidence that shows Wuterich shot anyone,” Puckett
Another issue is the onus of command influence that is yet to be
resolved, Puckett said
On March 23, 2010 Wuterich won a key
ruling that still could lead to the dropping of the case. Lieutenant
Colonel David Jones, a military judge who heard the motion to dismiss
the charges against Wuterich ruled his lawyers had successfully shown
that there was the evidence of the same undue command influence that
set his commanding officer free. Even so Jones ruled
against a motion to dismiss the case
during a hearing at Camp Pendleton and ordered Wuterich to stand
the two-day hearing General Mattis and retired Lieutenant General
Samuel Helland, who supported Mattis’ decisions when he took over
command form the distinguished officer was promoted testified the
government was not improperly influenced. Faraj said it was to the
Marine Corps' credit that Mattis was ordered to undergo
cross-examination about the case. It is unusual for a four-star
general to be called to the witness stand.
A military judge
dismissed charges of dereliction of duty and orders violations against
Lieutenant Colonel Jeffrey Chessani in June 2008 after finding that
undue command influence had sullied his case. Chessani the highest
ranking and last officer to be accused of criminal behavior retired in
July. The father of seven was the battalion commander of 3/1 before
being relieved for cause in late March 2006. Twice the government
unsuccessfully appealed the ruling and ordered him before a
non-judicial Board of Inquiry before it finally called off its
“Unlawful command influence is the mortal enemy of military justice,”
said military judge Colonel Steven Folsom at the time. “In order to
restore the public confidence, we need to take it back. We need to
turn the clock back.”
determined General James N. Mattis had tainted the proceedings when he
was the convening authority who sent Chessani and the other defendants
charges against two other 3/1 officers were dismissed during
preliminary hearings when the government could not produce enough
evidence to make their case. Lieutenant Andrew Grayson, an
intelligence officer and the only Marine to go to court martial, was
found not guilty of impeding the investigation and trying to sneak out
of the Marine Corps, perhaps the zaniest charge the case spawned.
time Puckett said his client "is in good spirits. He hasn't complained
at all. He loves the Marine Corps and wants to make it a career."
Puckett said the court martial is scheduled to last three weeks. The
government has called 47 witnesses, including former defendants,
forensic investigators, and immunized 3/1 Marines who testified in the
past. Among the witnesses on the list is Jeffrey Chessani, Wuterich’s
battalion commander who retired in July after being exonerated of
Nathaniel R. Helms
Defend Our Marines
14 August 2010
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam veteran, former police officer, war
correspondent, and, most recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).